White v. Director of Revenue
| Decision Date | 26 June 2008 |
| Docket Number | No. 28497.,28497. |
| Citation | 255 S.W.3d 571 |
| Parties | Barton L. WHITE, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., and Nicole L. Loethen, Associate Solicitor, Jefferson City, MO, for appellant.
William O. Worsham, Springfield, MO, for respondent.
The Director of Revenue ("Director") revoked the driver's license of Barton L. White ("White") under section 577.041, due to White's alleged refusal to submit to a blood alcohol test. White filed a petition for review with the trial court, and, following a hearing, the trial court entered a judgment ordering the Director to reinstate White's driver's license. The Director appeals, contending the trial court's judgment is unsupported by the evidence because the Director presented uncontroverted evidence establishing all three statutory elements required to revoke White's license: (1) White was arrested; (2) there were reasonable grounds to believe White was driving while intoxicated; and (3) White refused a blood alcohol test and abandoned any attempt to contact an attorney. Because we find that the trial court's judgment is supported by the evidence, we affirm.
Viewing the evidence in the light most favorable to the trial court's judgment, Findley v. Director of Revenue, 204 S.W.3d 722, 725 (Mo.App.2006), the following facts were adduced at trial:
At approximately 1:30 a.m. on August 6, 2006, Officer Craig Thorell of the El Dorado Springs Police Department was on patrol, driving down Main Street. He saw a truck coming toward him that appeared to be speeding, so he turned on his emergency lights and pulled the truck over. White was the driver of the truck. Officer Thorell could smell the odor of alcohol on and around White and on his breath. Officer Thorell informed White that he was pulled over for speeding, and asked White for his driver's license. White handed him restricted driving privilege paperwork, which allowed White to drive to work, school or an alcohol treatment program. Officer Thorell had never dealt with such paperwork, so he contacted Sergeant Jared Scherick who arrived on the scene a few minutes later. Sergeant Sherick told Officer Thorell that he had just seen White leave the Parkside Lounge and get into his truck and drive away. He told Officer Thorell that it appeared White was in violation of his restricted license. Officer Thorell then arrested White for "driving while suspended."
As Officer Thorell escorted White to the patrol car, he again smelled alcohol on White's breath and saw that he had watery eyes. At the police station, White also had trouble getting out of the patrol car, dragging his feet across the carpet and getting his foot stuck in the plastic on the door sill. Once out of the car, White swayed in a circular motion, and Officer Thorell assisted him as they walked into the police station. Officer Thorell and Sergeant Sherick both performed the horizontal gaze nystagmus test on White inside the station.1 White stated he could not perform the walk-and-turn test or the one-legged-stand test because he had a bad knee. The officers observed that White's speech was slightly slurred, his eyes were bloodshot and watery, he had a hard time focusing on one object, he swayed in a circular motion while standing and he could not walk in a straight line.
Officer Thorell prepared the paperwork "for the blood alcohol content" and read White his Miranda2 rights "directly off the alcohol form." White said that he did not understand, and Officer Thorell attempted to explain them in more detail. White told Officer Thorell he only had a seventh-grade education and wanted that written on the form. As noted by Officer Thorell, at 2:25 a.m. White told Officer Thorell he wanted an attorney present while he was being questioned. Officer Thorell continued to question White about whether or not he understood the implied consent warnings3 and asked him twice if he would submit to a breath test. White said no.
Officer Thorell then gave White a phone book and told him he could call an attorney. White made no attempt to look at the phone book or call an attorney, so Officer Thorell asked Sergeant Sherick to come in and explain the process to White. Sergeant Scherick advised White that he was under arrest for driving while intoxicated, that they were requesting a breath test from him and that his license would be revoked if he refused. Sergeant Scherick also informed White that he had twenty minutes to contact an attorney and gave him the phone book and showed him the telephone. According to Sergeant Scherick, White stated that he had a constitutional right to an attorney, that they had to appoint one for him, and that they were violating his civil rights by not appointing one for him. According to both officers, White became increasingly hostile, threatening to "kick their butts" and calling them "candyass motherfuckers." Sergeant Sherick told Officer Thorell to continue, wait the full twenty minutes, then prepare the refusal form if White did not make a decision about the breath test. However, at 2:32 a.m.—only seven minutes from when White stated he wanted an attorney present—Officer Thorell decided to lock White in a holding cell and recorded that White had refused to submit to the breath test.
White's driver's license was subsequently revoked by the Director, and White filed a petition for review with the trial court. At the hearing on White's petition, Officer Thorell and Sergeant Sherick testified to the foregoing facts. White testified that he remembered being arrested for driving on a suspended license. He stated that the first time he learned he was arrested for driving while intoxicated was when he was released later that morning. Following the hearing, the trial court entered its judgment ordering the Director to reinstate White's driver's license. This appeal followed.4
Our review of a bench-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, we will affirm the trial court's decision unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32. When assessing the sufficiency of the evidence, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's judgment. Findley, 204 S.W.3d at 725. All contrary evidence and inferences are disregarded. Id. When the facts of a case are contested we defer to the trial court's determinations regarding those facts. Fick v. Director of Revenue, State of Missouri, 240 S.W.3d 688, 690-91 (Mo. banc 2007). If the facts of a case are not contested, then the issue is legal and there is no finding of fact to which to defer. Guhr v. Director of Revenue, 228 S.W.3d 581, 585 n. 3 (Mo. banc 2007). "We consider all fact issues upon which no specific findings were made to have been found in accordance with the result reached." Findley, 204 S.W.3d at 725. "A trial court may accept or reject all, part or none of the testimony of any witness, and this Court must defer to the ability of the trial court to judge the credibility of a witness and ascertain the facts." Foster v. Director of Revenue, 186 S.W.3d 928, 930 (Mo.App.2006).
Missouri's implied consent law provides that "[a]ny person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to ... a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood[.]" Section 577.020.1.
Under the implied consent statutory framework, a driver may refuse to submit to a chemical test requested by an officer. [Section] 577.041.1. If the driver refuses even after being informed that refusal will result in immediate revocation of the driver's license, the officer, on behalf of the director, personally serves the driver with notice of license revocation and issues a fifteen-day temporary permit. Id. The officer must submit to the director a certified report, made under penalties of perjury, that includes a statement that the officer had reasonable grounds to believe the driver was driving while intoxicated and that the driver refused to submit to a chemical test. [Section] 577.041.2. Upon receiving the officer's report, the director revokes the driver's license for one year. [Section] 577.041.3.
A person whose license has been revoked for refusal to submit to a chemical test may petition for review by a circuit court in the county in which the arrest occurred. Section 577.041.4. At the hearing, the court shall determine only: (1) whether or not the person was arrested; (2) whether or not the officer had reasonable grounds to believe the person was driving while intoxicated; and (3) whether or not the person refused to submit to the test. Id. "The Director has the burden of establishing each element by a preponderance of the evidence." Foster, 186 S.W.3d at 930-31. "If the court determines any issue not to be in the affirmative, the court shall order the [D]irector to reinstate the license or permit to drive." Section 577.041.5.
The Director's sole point relied on contends that the trial court's judgment ordering the reinstatement of White's license is unsupported by the evidence because the Director presented uncontroverted evidence establishing the three requirements to revoke White's driver's license: (1) White was arrested; (2) there were reasonable grounds to believe White was driving while intoxicated; and (3) White refused a blood alcohol test and abandoned any attempt to contact an attorney.
First of all, the Director's argument that the judgment should be reversed merely because the evidence was uncontroverted is without...
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